Banks v. State

114 So. 3d 1010, 2012 WL 3535850, 2012 Fla. App. LEXIS 13672

Opinion

PALMER, J.

Bradford B. Banks, Jr. (defendant) appeals the trial court’s summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part and affirm in part.

As to ground 1 of the defendant’s motion, the trial court erred in concluding that the motion was untimely, because the motion was timely filed within two years of this court’s affirmance of the defendant’s sentence. See Banks v. State, 968 So.2d 576 (Fla. 5th DCA 2007). Accordingly, we reverse and remand for consideration of the merits of ground 1.

As to ground 2, we find no error in the trial court’s ruling.

As to ground 8, we reverse because the defendant should have been given an opportunity, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), to amend his claim regarding his habitual offender status.

AFFIRMED in part, REVERSED in part, and REMANDED.

TORPY and JACOBUS, JJ., concur.